OSTENBERG vs LEHMANN, et al.

25CV004232: OSTENBERG vs LEHMANN, et al. 10/09/2025 Hearing on Demurrer in Department 54

Tentative Ruling

Defendants Robert Lehmann and Karyn Lehmann, in their capacities as Co-Trustees of the Robert & Karyn Lehmann Family Trust’s (collectively, “Defendants”) demurrer to the Complaint of plaintiff Clint Ostenberg, as Trustee of the Clint Ostenberg Trust, dated November 3, 2021 (“Plaintiff”) is ruled upon as follows.

Plaintiff filed the Verified Complaint on February 21, 2025, alleging causes of action for: (1) quiet title; (2) quiet title: prescriptive easement; (3) equitable easement; (4) negligence; and (5) declaratory relief. Generally, the action is a boundary dispute in the residential neighborhood of Boulevard Park in Sacramento. The “disputed land” is a 3.3 foot wide strip on Defendants’ property, as it runs against Plaintiff’s property’s rear. (Comp. ¶ 15.)

When Plaintiff acquired the property, the back wall of Defendants’ detached garage and a boundary fence provided the rear enclosure for Plaintiff’s property, and he understood that the garage wall and boundary fence were located on the boundary line and that the entirety of the backyard was his property. (Comp. ¶ 12.) In or around November 2023, nearly seven years after Plaintiff acquired his property, the boundary fence began to lean and required replacement. (Comp. ¶ 13.) “Plaintiff was aware that Defendant[s] intended to remove the boundary fence and demolish the garage.

Plaintiff understood that upon removal, Plaintiff and Defendant[s] would share the cost of the installation of a new boundary fence in the same location as the existing boundary fence and garage wall. Instead in December of 2023, while Plaintiff was out of town, Defendant[s] demolished the garage, removed the boundary fence, and installed temporary construction fencing. It was at this time that Defendant[s] notified Plaintiff that the boundary line was approximately 3.3 feet towards Plaintiff’s home and the new fence would be installed on the boundary line.

Additionally, Defendant[s] demanded Plaintiff’s removal of the portion of his deck upon which his spa is located, alleging it was located on [Defendants’] Property.” (Comp. ¶ 13.) The parties agreed that a survey should be completed to confirm the boundary line and, although Defendants hired a surveyor and obtained a survey, it was never provided to Plaintiff. (Comp. ¶ 14.) Plaintiff also alleges that three road bicycles valued at over $6,000 were stolen from his storage space due to a lack of security and accessibility to his property caused by the temporary fencing. (Comp. ¶ 17.)

The Complaint alleges, “Plaintiff has consistently and visibly utilized the Disputed Land and deck located on the Disputed Land for seven years. This use has been open, notorious, and continuous, without interruption, and has been conducted in such a manner that Defendant[s] were or should have been fully aware of Plaintiff’s claim to this portion of the property.” (Comp. ¶ 18.)

Defendants demur on the ground each cause of action fails to allege facts sufficient to constitute a cause of action.

25CV004232: OSTENBERG vs LEHMANN, et al. 10/09/2025 Hearing on Demurrer in Department 54

Legal Standard

The function of a demurrer is to test the sufficiency of the pleading it challenges by raising questions of law. (Salimi v. State Comp. Ins. Fund (1997) 54 Cal.App.4th 216, 219; Nordlinger v. Lynch (1990) 225 Cal.App.3d 1259, 1271.) A demurrer “tests the pleadings alone and not the evidence or other extrinsic matters.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) Extrinsic evidence may not properly be considered on demurrer or on a motion to strike. (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881; Hibernia Savings & Loan Soc. v. Thornton (1897) 117 Cal. 481, 482.)

For the purpose of determining the effect of a complaint, its allegations are liberally construed, with a view toward substantial justice. (Code Civ. Proc. § 452; Amarel v. Connell (1988) 202 Cal.App.3d 137, 140-141; Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 43, fn. 7.) In this respect, the Court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law, and considers matters which may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-1112.)

A demurrer may be sustained only if the complaint lacks any sufficient allegations to entitle the plaintiff to relief. (Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 778.) “Plaintiff need only plead facts showing that he may be entitled to some relief . . ., we are not concerned with plaintiff’s possible inability or difficulty in proving the allegations of the complaint.” (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 696-697.) The sole issue raised by a general demurrer is whether the facts pled state a valid cause of action, not whether they are true. (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)

First Cause of Action – Quiet Title

Defendants assert that although Plaintiff does not “explicitly style his first cause of action as one for adverse possession,” the Complaint when read as a whole indicates that adverse possession is the legal theory advanced. Specifically, Plaintiff alleges he “has consistently and visibly utilized the Disputed Land and deck located on the Disputed Land for seven years. This use has been open, notorious, and continuous, without interruption, and has been conducted in such a manner that Defendant[s] were or should have been fully aware of Plaintiff’s claim to this portion of the property.” (Comp. ¶ 18.) “Plaintiff has been in actual, open, and notorious possession of the Disputed Land, a 3.3-foot-wide strip of the [Defendants’] Property running along the boundary between [Plaintiff’s] Property and the [Defendants’] Property, adverse to

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV004232: OSTENBERG vs LEHMANN, et al. 10/09/2025 Hearing on Demurrer in Department 54

Defendant[s].” (Comp. ¶ 23.) Further, “Plaintiff’s possession of the Disputed Land has been continuous, uninterrupted for over seven years, and conducted in a manner that is visible and apparent, such that Defendant[s] were aware or should have been aware of Plaintiff’s claim.” (Comp. ¶ 24.) Defendants contend Plaintiff has failed to sufficiently allege the elements for adverse possession.

Plaintiff contends Defendants have mischaracterized the first cause of action as one for adverse possession, “despite the Complaint never alleging the required elements of adverse possession such as payment of property taxes.” (Opposition at 2:14-15.) Instead, Plaintiff contends the cause of action is for “general” quiet title per Code of Civil Procedure section 761.020 and, as such, is properly pled.

Code of Civil Procedure section 761.020 requires a complaint for quiet title to be verified and to include the following elements: (1) a legal description of the property; (2) the basis of title as to which determination is sought; (3) the adverse claims to the title as to which determination is sought; (4) the date as of which the determination is sought; and (5) a prayer for the determination of title.

However, section 761.020 also expressly states that in alleging the basis of the title, “[i]f the title is based upon adverse possession, the complaint shall allege the specific facts constituting the adverse possession.” (Code Civ. Proc. § 761.020(b).) Here, although Plaintiff does not expressly use the phrase “adverse possession,” that is not determinative because it is clear from the allegations that the ground for seeking to quiet title is based upon adverse possession and, thus, Plaintiff must sufficiently allege the facts constituting a claim based upon adverse possession.

“The elements of an adverse possession claim of title consist of the following: (1) actual possession by the plaintiff of the property under claim of right or color of title; (2) the possession consists of open and notorious occupation of the property in such a manner as to constitute reasonable notice to the true owner; (3) the possession is adverse and hostile to the true owner; (4) the possession is uninterrupted and continuous for at least five years; and (5) the plaintiff has paid all taxes assessed against the property during the five-year period.” (Bailey v. Citibank, N.A. (2021) 66 Cal.App.5th 335, 351.)

Defendants contend that Plaintiff has failed to sufficiently allege possession under a claim of right because he has not alleged that he or his predecessors constructed the detached garage or boundary fence that made up the enclosure to the property. Citing to Wareham v. Randolph (1960) 184 Cal.App.2d 218, Defendants assert an enclosure or fence may only qualify as a possessor’s claim of right over another’s land if the possessor or possessor’s predecessors are the ones who erected the enclosure or fence. Wareham does not advance such a holding and is distinguishable. The property at issue in Wareham was “desert in character, unfenced and unimproved.” (Wareham,

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV004232: OSTENBERG vs LEHMANN, et al. 10/09/2025 Hearing on Demurrer in Department 54

supra, at p. 221.) In finding that the plaintiff had not established ownership of the property by adverse possession, the Court simply discussed that no enclosure was constructed around the property, nor was the property cultivated or improved during the time in question. (Id. at p. 223.) However, nowhere does Wareham expressly state that a claim of right can only be established if the possessor or his predecessors were the persons to actually construct or erect an enclosure. Thus, this argument is rejected. The Court is not persuaded Plaintiff must allege he or his predecessors constructed the enclosure to allege possession under a claim of right.

Defendants also contend that a fence, in and of itself, is inconsistent with adverse possession without a definite agreement to accept the location of the fence as the true boundary line. (Dibirt v. Bopp (1935) 4 Cal.App.2d 541, 544.) Dibirt is distinguishable because Dibirt did not involve a ruling on demurrer and, instead, involved a judgment issued by the Court after considering the evidence. Accordingly, this argument is not persuasive here.

With respect to openness and notoriousness, Defendants aver the allegations are conclusory and do not allege anything other than Plaintiff’s ordinary and unknowing occupation of Defendants’ property, which is insufficient. Defendants also contend the allegation of hostility for more than five years fails for the same reason because occupation of another’s land, by itself, is not hostile and the occupation only became adverse at the time of the survey in 2024. (Ikola v. Goff (1973) 31 Cal.App.3d 872, 878 [no adverse possession over disputed land where joint participation in a survey only recently rendered plaintiff’s occupancy hostile].) Finally, Defendants argue Plaintiff does not allege payment of taxes in any form or fashion, which is required for a claim of adverse possession.

The Court finds Plaintiff has sufficiently alleged open, notorious, and hostile use of the property. “Although there is some conflict in cases from other jurisdictions, the rule is settled in California that the requisite hostile possession and claim of right may be established when the occupancy or use occurred through mistake.” (Gilardi v. Hallam (1981) 30 Cal.3d 317, 322.) Plaintiff has alleged at the time he acquired the property, he understood the garage wall and boundary fence were located on the boundary line. (Complaint ¶ 12.) He further alleges he has consistently and visibly used the disputed land upon which his deck is located for seven years. (Complaint ¶ 18.)

However, Plaintiff admits he has failed to allege payment of taxes, which is required for a quiet title claim based upon adverse possession. Accordingly, the demurrer is SUSTAINED on this basis, but with leave to amend.

Second Cause of Action – Quiet Title: Easement by Prescription

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV004232: OSTENBERG vs LEHMANN, et al. 10/09/2025 Hearing on Demurrer in Department 54

By this cause of action, Plaintiff seeks “to quiet title by prescriptive easement to the Disputed Land, as of November 16, 2021, above and against all adverse claims of Defendant, their successors and assigns, and all persons unknown.” (Comp. ¶ 32.)

Defendants assert an easement concerns the use of land, but is not an ownership interest. However, as alleged, this cause of action is improperly “disguised” as a claim for adverse possession, which fails for the reasons stated above.

Plaintiff argues the easement sought does not exclude Defendants entirely because “the use is limited to enclosure/privacy, allowing Defendants non-interfering rights.” (Opposition at 5:2-4.)

The Court is not persuaded that the prescriptive easement Plaintiff alleges is not, as a practical matter, a claim of ownership over the disputed land against all others, including Defendants. Indeed, “[a]n easement gives a nonpossessory and restricted right to a specific use or activity upon another’s property, which right must be less than the right of ownership. [Citation.]” (Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1306.) Here, Plaintiff seeks to quiet title by prescriptive easement “above and against all adverse claims of Defendants, their successors and assigns, and all persons unknown.” (Comp. ¶ 32.) Examples of easements include a right-of-way over another’s land or the right to pasture on another’s land. (Civ. Code § 801.) In this case, Plaintiff seeks full possession over the property. As explained in Hansen v. Sandridge Partners, L.P. (2018) 22 Cal.App.5th 1020:

“‘There is a difference between a prescriptive use of land culminating in an easement (i.e., an incorporeal interest) and adverse possession which creates a change in title or ownership (i.e., a corporeal interest); the former deals with the use of land, the other with possession; although the elements of each are similar, the requirements of proof are materially different.’ [Citation.]

‘To establish the elements of a prescriptive easement, the claimant must prove use of the property, for the statutory period of five years, which use has been (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right. [Citations.] To establish adverse possession, the claimant must prove: (1) possession under claim of right or color of title; (2) actual, open, and notorious occupation of the premises constituting reasonable notice to the true owner; (3) possession which is adverse and hostile to the true owner; (4) continuous possession for at least five years; and (5) payment of all taxes assessed against the property during the five-year period.’ [Citation.]

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV004232: OSTENBERG vs LEHMANN, et al. 10/09/2025 Hearing on Demurrer in Department 54

[A] ‘prescriptive easement does not require payment of taxes.’ [Citation.]

Because of the taxes element, it is more difficult to establish adverse possession than a prescriptive easement.

Unsurprisingly, claimants have often tried to obtain the fruits of adverse possession under the guise of a prescriptive easement to avoid having to satisfy the tax element. [Citation.] That is, they seek judgments ‘employing the nomenclature of easement but creat[ing] the practical equivalent of an estate.’ [Citation.] Such judgments ‘pervert[] the classical distinction in real property law between ownership and use.’ [Citation.] The law prevents this sophistry with the following rule: If the prescriptive interest sought by a claimant is so comprehensive as to supply the equivalent of an estate, the claimant must establish the elements of adverse possession, not those of a prescriptive easement. [Citation.] In other words, the law simply ‘does not allow parties who have possessed land to ignore the statutory requirement for paying taxes by claiming a prescriptive easement.’ [Citation.]”

(Hansen v. Sandridge Partners, L.P. (2018) 22 Cal.App.5th 1020, 1032-1033.)

Based on the allegations, the Court concludes that despite the title, this cause of action seeks relief by way of adverse possession, but Plaintiff has failed to sufficiently allege the requisite element of payment of taxes as set forth above. Accordingly, the demurrer is SUSTAINED, but with leave to amend.

Third Cause of Action – Quiet Title: Equitable Easement

An equitable easement typically arises in defense of a claim of trespass; it’s the result of the balance of equities going toward permitting the defendant’s encroachment to avoid an unjust hardship that may result from an order enjoining the encroachment. (Ukhtomski v. Tioga Mut. Water Co. (1936) 12 Cal.App.2d 726, 728-29.) The sine qua non of a grant of an equitable easement, therefore, is a trespass. (Romero v. Shih (2022) 78 Cal.App.5th 326, 358-59 [collecting cases], revd. on other grounds (2024) 15 Cal.5th 680.)

Defendants assert that an equitable easement requires an encroachment, which is not alleged because the Complaint merely alleges that the boundary line abuts his deck, not that his deck encroaches upon Defendants’ property. (Comp. ¶ 14.)

The Court disagrees and finds Plaintiff has sufficiently alleged an encroachment. (Complaint ¶¶ 12-15, 36-37.) The demurrer is OVERRULED.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV004232: OSTENBERG vs LEHMANN, et al. 10/09/2025 Hearing on Demurrer in Department 54

Fourth Cause of Action – Negligence

Plaintiff alleges Defendants owed him “a duty of care to maintain the boundary and security of the property in a manner that would prevent unauthorized access and protect Plaintiff’s property from theft or damage. This duty arises from Defendant[s’] refusal to allow the new fence to [be] built in the location of the removed fence and garage.” (Comp. ¶ 46.)

Defendants contend a private property owner does not owe a duty of care to another private property owner to prevent the theft of property.

Plaintiff asserts the alleged duty is based upon Defendants affirmatively creating a security vulnerability to his property by removing the garage and fence and installing only temporary construction fencing. Plaintiff argues that the alleged duty arises based upon the holding of Rowland v. Christian (1968) 69 Cal.2d 108. Under Rowland, the owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. The duty owed is one of reasonable care, and a landowner’s failure to repair, or warn an invitee about, a dangerous condition can constitute negligence. (Rowland v. Christian (1968) 69 Cal.2d 108, 119.)

The Court does not agree that Plaintiff has sufficiently alleged duty because, as alleged, Plaintiff asserts the duty is to protect Plaintiff’s property from theft or damage that was caused by a third party who allegedly stole Plaintiff’s bicycles. However, “[a] defendant does not owe a legal duty to protect against third party conduct unless there exists a special relationship between the defendant and the plaintiff.” (Doe v. Los Angeles County Dept. of Children & Family Services (2019) 37 Cal.App.5th 675, 682-83; see also Rotman v.

Maclin Markets, Inc. (1994) 24 Cal.App.4th 1709 [affirming grant of directed verdict on proprietor’s negligence claim for theft of goods by third party in favor of landowner], quoting Noble v. Los Angeles Dodgers, Inc. (1985) 168 Cal.App.3d 912, 916 [“We are . . . unaware of any case in which judgment against a property owner has been affirmed solely on the basis of a failure to provide an adequate deterrence to criminal conduct in general”].) Absent a special relationship, a landowner generally owes no duty to protect against a third party’s criminal conduct. (See Melton v.

Boustred (2010) 183 Cal.App.4th 521, 531-532.) The Court is not persuaded Plaintiff has alleged a special relationship that would give rise to a duty to protect against a third party’s criminal conduct.

Based on the foregoing, the demurrer is SUSTAINED, but with leave to amend.

Fifth Cause of Action – Declaratory Relief

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV004232: OSTENBERG vs LEHMANN, et al. 10/09/2025 Hearing on Demurrer in Department 54

Defendants assert the claim for declaratory relief is based on the first three real property causes of action and, therefore, also fails for the same reasons. The Court has sustained the first two causes of action for quiet title, but overruled the third cause of action for quiet title based upon equitable easement. Accordingly, the demurrer to the fifth cause of action is OVERRULED.

Conclusion

Defendants’ demurrer is SUSTAINED with leave to amend as to the first, second, fourth causes of action.

Defendants’ demurrer is OVERRUELD as to the third and fifth causes of action.

Plaintiff may file and serve a First Amended Complaint no later than October 23, 2025.

Defendants may file and serve a response within 30 days of service of the First Amended Complaint, or 35 days if served by mail.

This minute order is effective immediately. No formal order pursuant to California Rules of Court Rule 3.1312 or other notice is required.

NOTICE:

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To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomes the final order of the Court.

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SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV004232: OSTENBERG vs LEHMANN, et al. 10/09/2025 Hearing on Demurrer in Department 54

Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.Pdf

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